Citation Nr: 0308900
Decision Date: 05/12/03 Archive Date: 05/20/03
DOCKET NO. 96-07 445 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Huntington, West Virginia
THE ISSUE
Entitlement to an increased rating for Wolff-Parkinson-White
syndrome with chest pain and elevated blood pressure,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Non Commissioned Officers
Association
ATTORNEY FOR THE BOARD
Michelle S. Miyake, Counsel
INTRODUCTION
The veteran served on active duty from July 1976 to July
1992.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1995 rating decision by the RO
that, in part, denied a claim for an increased rating for
Wolff-Parkinson-White syndrome with chest pain and elevated
blood pressure. The veteran was notified of this action by a
letter in April 1995.
Previously, this case was before the Board in December 1999
when it was remanded for additional development.
REMAND
The veteran's Wolff-Parkinson-White syndrome with chest pain
and elevated blood pressure was at one point evaluated, by
analogy, as 10 percent disabling under 38 C.F.R. § 4.104
(Diagnostic Code 7099-7015). See 38 C.F.R. § 4.20 (2002).
After the veteran filed his claim for an increased rating,
the schedular criteria by which cardiovascular disabilities
were rated changed, and the new criteria have been in effect
since January 12, 1998. See 62 Fed. Reg. 65,207-65,224 (Dec.
11, 1997). The RO initially advised the veteran of the new
criteria in a November 1998 supplemental statement of the
case (SSOC).
When the case was last before the Board in December 1999, it
found that the July 1998 VA examination report was inadequate
to rate the veteran's service-connected Wolff-Parkinson-White
syndrome with chest pain and elevated blood pressure because
it did not contain detailed findings specific to the new
rating criteria. Specifically, no testing was done showing
the metabolic equivalents (METs) at which dyspnea, fatigue,
angina, dizziness, or syncope became manifest. (Even in the
event that a laboratory determination of METs by exercise
testing can not be done for medical reasons, an estimation of
the level of activity that results in dyspnea, fatigue,
angina, dizziness, or syncope must be done. 38 C.F.R.
§ 4.104, note 2 (2002).) Given that obtaining these results
was necessary to evaluate the veteran's disability, the Board
remanded the case in December 1999 for a new VA examination.
Despite acquiring a new VA examination in March 2000, the
Board finds that this examination is also inadequate for
rating purposes because it does not contain sufficient detail
to evaluate the veteran's service-connected cardiovascular
disability. 38 C.F.R. § 4.2 (2002); see Bowling v. Principi,
15 Vet. App. 1, 12 (2001) (emphasizing Board's duty to return
inadequate examination report). In this case, although the
March 2000 VA examiner determined that the veteran had an
estimated workload of 4.6 METs, the examiner also noted an
absence of any current problem with service-connected Wolff-
Parkinson-White syndrome. In providing the METs, the
examiner did not offer an explanation as to which disability
caused the veteran to have such an estimated METs level.
Given that the veteran is also service-connected for chronic
obstructive pulmonary disease (COPD), another examination is
necessary to determine, if feasible, the veteran's METs level
based solely on the effect of service-connected Wolff-
Parkinson-White syndrome. Therefore, a remand is required
for a new examination.
Subsequent to the Board's December 1999 remand, the Board
began taking action to develop cases here at the Board in
lieu of remands to the RO. 38 C.F.R. § 19.9(a) (2002).
Nevertheless, on May 1, 2003, the United States Court of
Appeals for the Federal Circuit (Federal Circuit), in
Disabled Am. Veterans v. Sec'y of Veterans Affairs, No. 02-
7304 (Fed. Cir. May 1, 2003) (DAV), held that 38 C.F.R.
§ 19.9(a)(2) was invalid because, in conjunction with the
amended rule codified at 38 C.F.R. § 20.1304, it allowed the
Board to consider additional evidence without having to
remand the case to the RO for initial consideration and
without having to obtain the appellant's waiver of the right
to initial consideration of the evidence by the RO. The
Federal Circuit also held that 38 C.F.R. § 19.9(a)(2)(ii)
(requiring the Board "to provide the notice required by
38 U.S.C. [§] 5103(a)" and "not less than 30 days to
respond to the notice") was invalid because it was contrary
to 38 U.S.C. § 5103(b), which provides a claimant one year to
submit evidence. Given the necessity to obtain a new VA
examination and, in light of the recent decision in DAV, the
Board must remand the case to the RO for the evidentiary
development.
Accordingly, the case is REMANDED to the RO for the
following:
1. The RO must review the claims files
and ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475, 114 Stat. 2096
(2000) (VCAA), is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures codified at 38
U.S.C.A. §§ 5102, 5103, 5103A, and 5107,
and the duty to assist regulations, found
at 66 Fed. Reg. 45,620-32 (Aug. 27,
2001), are fully complied with and
satisfied. See Quartuccio v. Principi,
16 Vet. App. 183, 187 (2002).
2. The RO should contact the veteran and
request that he identify the names,
addresses and approximate dates of
treatment for all health care providers,
VA and private, who may possess
additional records pertinent to his claim
for Wolff-Parkinson-White syndrome with
chest pain and elevated blood pressure.
With any necessary authorization from the
veteran, the RO should attempt to obtain
and associate with the claims files any
medical records identified by the veteran
that have not been secured previously.
3. If the RO is unsuccessful in
obtaining any medical records identified
by the veteran, it should inform the
veteran and his representative of this
and ask them to provide a copy of the
outstanding medical records.
4. After the development requested above
has been completed to the extent
possible, the RO should schedule the
veteran for a VA cardiovascular
examination to assess the severity of his
service-connected Wolff-Parkinson-White
syndrome with chest pain and elevated
blood pressure. The examiner(s) should
be furnished copies of the old and new
criteria as set forth under Diagnostic
Codes 7010, 7015, and 7101, or any other
Code(s) which the RO deems potentially
applicable. All indicated special tests
and studies should be accomplished,
including (if deemed medically
appropriate) a laboratory determination
of METs. With regard to MET testing, the
examiner should document the level of
METs at which dyspnea, fatigue, angina,
dizziness or syncope develops. If a
laboratory determination of METs by
exercise testing cannot be done for
medical reasons, an estimation by the
examiner of the level of activity
(expressed in METs and supported by
specific examples, such as slow stair
climbing or shoveling snow) that results
in dyspnea, fatigue, angina, dizziness,
or syncope should be provided. The METs
level reported should relate to the
veteran's service-connected heart
disability only. Blood pressure readings
and any medication used to control
elevated blood pressure should be noted.
All manifestations of the veteran's
service-connected Wolff-Parkinson-White
syndrome should be documented by the
examiner(s). Given the RO's previous
manner of rating, the examiner should
also be asked to say whether the
veteran's syndrome is best characterized
as being akin to a supraventricular
arrhythmia or atrioventricular block for
rating purposes. The claims files, along
with all additional evidence obtained
pursuant to the requests above, should be
made available to the examiner(s) for
review.
5. The RO should ensure that any
examination report complies with this
remand, especially with respect to the
instructions to provide medical opinions.
If any report is insufficient, it should
be returned to the examiner for necessary
corrective action, as appropriate
6. Thereafter, the RO should review the
record and ensure that all development
actions have been conducted and completed
in full. The RO should then undertake
any other action required to comply with
the notice and duty-to-assist
requirements of the VCAA and VA's
implementing regulations.
7. Then, the RO should re-adjudicate the
claim based on both the old and new
criteria for rating cardiovascular
disabilities, with application of those
more favorable to the claim. The RO must
also consider all possible diagnostic
codes, including Diagnostic Code 7101 for
hypertensive vascular disease.
Consideration should be given to whether
separate compensable ratings are
warranted for distinct manifestations of
the service-connected disability. If the
benefit sought is denied, a SSOC should
be issued. The SSOC should contain,
among other things, a summary of the
evidence received since the last SSOC was
issued in November 2001. 38 C.F.R. §
19.31 (2002). If the veteran does not
appear for the examination, without good
cause, the SSOC should include reference
to the provisions of 38 C.F.R. § 3.655
(2002).
After the veteran and his representative have been given an
opportunity to respond to the SSOC, the claims folders should
be returned to this Board for further appellate review. No
action is required of the veteran until he receives further
notice. The purpose of this remand is to comply with
governing adjudicative procedures. The veteran has the right
to submit additional evidence and argument on the matter the
Board has remanded to the RO. Kutscherousky v. West, 12 Vet.
App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims (Court) for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West 2002) (Historical and Statutory Notes). In
addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2002).